Health and Safety Reform Bill

We come to what is really the meat and drink of the bill. I get the feeling that Parts 1 and 2 were the curtain-raiser to what is the main event, and the reason that Opposition parties are so opposed to the bill. I certainly have appreciated the robust but respectful interventions so far and I trust that they will continue through Part 3. I have reasonable expectations about the degree to which we are able to create an epiphany and unity around the Chamber by the end of the night, but we will give it a go. I want to start by referencing—

💬 Hon Ruth Dyson: Do a rousing version of “Kumbaya”.

That is right. I want to reference the Independent Taskforce on Workplace Health and Safety report because it has been quoted quite a bit, particularly in the context of worker representation. I have said publicly that I have been disappointed at the misrepresentation of the Government’s position in this regard. I stand by that and I want to explain why.

It is very clear to me that there is a disassociation between health and safety participation and health and safety representation. They are two quite discrete things but very often in the public narrative they have been conflated. I just want to quote the task force report at paragraph 234, 235, and 236: “We consider that there needs to be a major ‘mind-shift’ in New Zealand society and in workplaces. This ‘mind-shift’ needs not only to lead to more opportunities for worker participation but also to set an expectation that everyone in the workplace is responsible for workplace health and safety.” It went on to say: “… the Taskforce considers it is important that each workplace is able to identify the approach to worker participation that is appropriate to its circumstances. Case study research commissioned by the Taskforce reinforced that worker participation arrangements are varied and ‘how they work in practice is somewhat different from that envisaged by the legislation’. While a one-size-fits-all approach to effective worker participation is not appropriate, PCBUs do need to ensure that they have effective systems for worker participation …”.

It did go on in another part of the report to say that health and safety representation also needed to be beefed up, and I accept that. I believe this bill does that. What we have is the task force saying three things: worker representation needs to be beefed up; worker participation needs to be across the board; and, crucially, there is not a one-size-fits-all approach to this. I think that point is the crucial point when it comes to arguing about the merits or otherwise of the mandatory requirement to have health and safety representation superimposed on what we agree is the mandatory requirement to have worker participation.

This is fundamental to the approach of what I believe is a sensible and balanced approach to where the Government has landed in this bill. We will argue the merits of that through Part 3. I do want to—and I will attempt to do this as gently as possible, because I have tried very hard in the data that I have explored to find a correlation between the presence of a health and safety rep in the workplace and the incidence of serious injury and death in the workplace, and I cannot. I am not saying for a moment that health and safety representatives are not important—in fact, quite the opposite. But what that says to me is that there are many other factors at play in determining whether practicable steps are being taken in a workplace to keep people safe, and whether all workers are participating in that health and safety process.

I have reflected a lot on this, and in a previous life as a chartered accountant giving business advice to small businesses, one of the things that I observed in those businesses was that often somebody gets to be the go-to guy. They become the health and safety rep, and it is that guy’s responsibility. Indeed, it is a bit of a cop out. This was redressed by the Independent Taskforce on Workplace Health and Safety report. It is really important to me that that not be the case, because worker participation is the most important change that we need to make in bringing about the culture change that is necessary in our workplaces. I firmly believe that for many organisations, if they do not have the right culture settings, just having a health and safety rep is the easy path.

You know what the harder path is going to be, I suspect? I think the harder path is going to be when a small business that is not in the classification of high risk says “You know what, the health and safety rep is not the right model for us. We’re going to have another way of engaging all of our workers in health and safety.”, whether it is going to be weekly tool box meetings, whether it is going to be a connected online health and safety app—because remember, a lot of these sort of plumbing firms or construction firms or whatever, they are out and about. They are not in an office. They are all over the town sometimes, and getting together and understanding where the hazards are, what the risks are, and how to manage them is not a one-size-fits-all approach.

All of that said, the purpose of this is not to diminish the important role of health and safety reps. They are very important, but they are not the only way to deliver effective health and safety participation and that culture. So this framework has been very clear that the majority of workers in New Zealand—more than three-quarters—will be in organisations where when the staff ask for a health and safety rep, they will get one. I have every confidence that of the other quartile, the answer to the request for a health and safety rep, as it is now, will be “Yes.”

But it is not a one-size, cookie cutter approach to worker participation. I set out, in the upper quartile of risk, the principles that we will use to identify and consult on the regulation that will determine high-risk industries and the risk of a catastrophic event. We know that Pike River is driving a lot of our thinking. An industry with a fatality rate of more than 25 per 100,000 workers, and an industry with a serious injury rate of more than 25 per 1,000 workers—with just one exception, everybody above that line is in. We have added in construction on the basis that there is an occupational disease risk with asbestos and silica, and I think that is appropriate, albeit that I have to acknowledge that the construction industry is on a very, very positive path to improving its serious injury rate. It has nearly halved in the last 5 years, and we have got to acknowledge that.

Most of farming is out. That has caused quite a surprise and lots of conspiracy theories about internal ructions and so on, but the simple fact is, yes, we need to improve our health and safety performance on farms, and, yes, there is a high number of people with serious injury and death, but they are also our largest industry. So when you standardise those rates by the size of that industry and the size of the workforce, it falls down the rankings and out of that top quartile. I do happen to believe that farming is one of those industries that does require a different approach because of the nature of the workplace, and that the health and safety rep system may have been the easy path out anyway. One would probably see, I think, some farming entities taking that up, but, actually, what I want from farming is a much, much more nuanced approach to health and safety, because it has to lift its game. We are going to resurrect the quad bike safety committee, because that is kind of the ground zero for farming injuries and deaths, and if we can fix that, and if we can ease farming concerns about the regulator, which, actually, we are on a really good path to, I think we are on a much better trajectory for improving health and safety in that industry.

I stand by these changes. I strongly endorse them as being the right approach and the balanced approach to effective health and safety representation and, most important, the culture change through worker participation that this country needs. We said it at the start and we have said it at each reading: laws and regulations are not going to make the change we need; behaviours and attitudes are, and that involves every worker, every person conducting a business or undertaking, and every officer.

Well, what a bunch of weasel words. What a bunch of weasel words from the Minister for Workplace Relations and Safety to actually try to describe what everyone knows happened in the National Party caucus when it bottled out of delivering proper health and safety systems for all workers in New Zealand. That is what has happened. That is what has happened here, and there are no weasel words that will hide that, because what the Government has done is it has actually decided who is worthy and who is not worthy of the most effective health and safety representation. That is what the National Government has done. The Labour Party believes that every worker, no matter what industry, no matter what size of workplace, and no matter what location in the country they come from, deserves the most effective health and safety representation if they want it.

Minister, you left one vital part out of your deliberation on this part of the bill: all the requirement was going to be was that if workers requested an elected health and safety representative, then their employer would be required to allow them to do that. That is all that was going to be required, and when the bill went to the Transport and Industrial Relations Committee, that is exactly how it read. That is exactly how it read because that is what the royal commission was recommending, that is what the task force was recommending, and that is what every party around this debating chamber agreed with.

Sadly, because of the mean-spirited nature of the National Government and because of its lack of commitment to getting genuine health and safety representation right across the board, it has lost the support of some of the parties in this Parliament. That is a very great shame because this should have been a non-partisan issue. The Government has managed to screw that up and make it a partisan issue because it has come to the defence of some of its backers and supporters and has actually bottled out of having this legislation with the strength it had when it first came to this Parliament.

The Minister is right about one thing: this is the crux of it. This debate is the one that I think we have got to pay serious attention to because it is the part that says that for around about 25 percent of the workforce, even if they want to have one of their own elected to speak on their behalf when it comes to health and safety, that is not going to happen. That is the decision of this Government—25 percent of our workforce. Not just any old 25 percent of the workforce, but the 25 percent of the workforce that, in some instances, work in the most dangerous sector in this country: agriculture. The Minister can use the figures any way he likes to try to dumb that down, but the truth of the matter is that agriculture kills more people in New Zealand than any other workplace. That is a fact. Nothing that the Minister says is going to stop the New Zealand public from understanding that. They know about the quad bike deaths. They know about the unnecessary deaths of people who have been knocked over by stock. They know about the unnecessary deaths of people who have been killed by hay-bales. They know about these things, and no amount of weasel words and moving the data around is going to convince people otherwise, and it certainly will not convince the Labour Party otherwise.

We have Supplementary Order Papers to fix this—to fix this sham of pretending that the most dangerous workplaces in New Zealand are not the ones that that Government will exempt from being required to have elected health and safety representatives in place when the workers ask for them. I want to reiterate that last part of the sentence again: when the workers ask for them. There is your flexibility, Minister. If it is not going to be the most effective system, then the workers are not going to want it. But that party opposite listened to the likes of Talley’s, which came along with its bad health and safety records and said to the select committee that workers would demand these reps whether they were going to work or not. Talley’s said that workers were going to demand them because it thought there was a hidden agenda. There was some other secret agenda, some unnamed agenda that Talley’s would not name, that they convinced the National Party members was going to ruin workplace health and safety and ruin the workplace.

Well, I put it to the Minister again, and I would like an answer to this: is this the way in which we are going to allow situations like bonus payments to happen, which drive bad health and safety work practices? Is this the way in which we are going to allow the meat plant chain to be sped up, against the will of the workers, which causes serious harm, without that being challenged by an elected health and safety representative?

Here is the other part of Part 3, which in combination with this I think is very dangerous: the determination of work groups. I can see that what is going to happen is that large workplaces are going to restructure themselves so that they come under the provision of having 20 workers or fewer. If they seriously want to avoid the requirement, that restructuring will start happening, and I confidently predict it because we have seen it before. We have seen it before when pieces of legislation have given employers an out, and lesser compliance because of the number of workers they employ. They simply restructure themselves so they fall into that, and that will make New Zealand a laughing stock again, in terms of our health and safety record. This is a country that has no excuse for having a bad health and safety record, and yet we lead the tables that you do not want to lead internationally over workplace deaths, and it is not acceptable. This part lets us down badly. The Labour Party actually voted for both of the first two parts of this bill because they made sense. This part we will be voting against. We will be absolutely opposing it because this is the part that dilutes it.

Why is it that they so badly do not want to have elected health and safety representatives in those smaller workplaces and on those farms? One of the things I did before I came to this place was to train those health and safety representatives. The one thing that is going to make sure that small workplaces actually comply with this legislation is that a living, breathing, trained, elected health and safety representative will be there to know whether this legislation is being complied with or not. If there is not an elected health and safety representative who is trained to know whether it is being complied with or not, who is? Who is going to be on every single one of those dairy farms, who is going to be in every corner dairy, who is going to be in all of these small workplaces to know whether this has actually been complied with or not? Because it ain’t going to be WorkSafe—it ain’t going be WorkSafe unless that Minister is going to start employing a whole lot more WorkSafe officers to be in all of those workplaces all over the country. That is the value of having elected health and safety representatives. They are on the ground. They know what is happening, they know what is not happening, and they get trained in this legislation to know what the obligations of all the parties are—but not under this Government.

Under this Government, even though the workers might desperately need one of their own to be elected to speak on their behalf, if they are in a small workplace with fewer than 20 employees, unless it is a high-risk industry—and now farming is apparently not high risk under this Government—they are not going to be able to get their voices heard on health and safety.

The Minister talks about workplace participation as though it is something that just naturally happens in the workplace. Well, I put it to the Minister that the Pike River mine would have been able to comply with this part of the bill and it would have been able to say that it had workplace participation going on in health and safety, because every once in a while it would meet and talk about health and safety. Every once in a while it would have meetings with its workers and preach to them about what was going to happen with health and safety. But did those workers have a voice, a genuine voice, in health and safety? No, they did not, and it has become far too painfully clear that they did not.

I would challenge the Minister to tell this Committee how he is going to ensure that worker participation systems are going to be in place where there is a genuine say from the workers and not just a tool box meeting where they get told what is going to happen next—what is and what is not going to happen, how they are not going to get their ventilation sorted out, and how they are not going to get the emergency exit that they need in their dangerous workplace. That is exactly what happened in the Pike River mine, and I believe that this is what will happen under this waffly idea of a worker participation system.

I am very pleased to be able to take a call on this Health and Safety Reform Bill. It is the first call I have had an opportunity to take on this bill. After being present last night to hear the members of families who have lost people due to workplace deaths, I feel the weight of responsibility in debating this issue, and the privilege of being able to speak and to try to, in some way, convey their concerns, particularly around this part of the bill. Although counter to what the Minister seems to be suggesting, this is at the heart of what needs to happen. Worker engagement is essential to ensuring safe workplaces.

What we see in this part is, in effect, a gutting of the recommendations from the Royal Commission on the Pike River Coal Mine Tragedy, and The Report of the Independent Taskforce on Workplace Health and Safety, which was promoting a model very similar to the Australian model of health and safety law, which is big on worker participation. It has provisions for elected health and safety representatives, health and safety committees, training for health and safety representatives, and for health and safety representatives to have powers to enforce health and safety on the job. What this bill and this part do really guts that, which means that the intent of the royal commission, and the pain that those families have been going through—in their own grieving, as well as standing up and advocating and sharing their experiences with us as a Parliament and with the rest of the country—are to be for nothing if we pass this part of the bill as it is.

We have heard from the Minister that they have considered these issues and have decided that this is balanced. Well, you know, the words of the family were that balance means nothing if there is going to be another death. To them, balance is not worth the loss of their families. I think it was Bernie Monk who said that it will feel as if the deaths were for nothing; that there will be no legacy or resolution for their advocacy and working through of that grief, if we do not ensure that there are strong provisions for all workers in this country.

The fact is that a limit has been set on 20 workers in a workplace when we know that 97 percent of businesses in New Zealand have fewer than 20 workers, and that is where the whole small business strategy in this country sets out that 97 percent have below 20—

💬 Hon Ruth Dyson: Just says 87.

Eighty-seven, was it? Sorry—the document I read said 97 percent. Maybe the numbers have changed in recent times.

💬 Hon Michael Woodhouse: Oh, 25—25.

But it is—well, I think we are really quibbling to be arguing that point, Minister Woodhouse, and I think you are really missing the point if you are going to argue that. Then to have a separate section to say “OK, well, we’re going to identify the high-risk industries as the exception to that.” when we do not have that in legislation, where it is going to be a debatable point outside of this Chamber, is, again, not doing honour to the advocacy of those families.

I was very privileged to sit in on some of the submissions, and there were a huge number that the Transport and Industrial Relations Committee heard on this bill. We heard from, I think, the Forest Owners Association, which was saying that it had no issue with worker participation and that it had very good worker advocacy on its sites. That was in direct conflict, I think, to Helen Kelly’s presentation, where she talked about the reports on her office wall of forestry deaths where there was no worker voice in any of those reports.

Our employers are saying “Yes, we’re doing these things.”—probably according to the provisions of this bill—and yet there is no worker representation or voice when it comes to those death reports. I think it tells us something about the need to have it down clearly in legislation, so that there is no ability to kind of muddy the waters and say “Yes, we’re doing this, we care.”, when, actually, the overriding interest is the short-term dollar.

Thank you, Mr Chair, for the opportunity. This is my first call on this bill, so I want to acknowledge all members on the Transport and Industrial Relations Committee. I especially want to acknowledge the Minister for Workplace Relations and Safety for his work on this bill, and the select committee chairperson, Jonathan Young. I also want to thank all submitters for their input and the effort they have put into helping us shape this bill.

In Part 3, the amendments recommended by the majority of the select committee were thoroughly discussed in the select committee. Those recommendations were made after taking into consideration all aspects of various submissions that we received. Once this legislation goes through, it is going to be applicable to all workplaces, so we need to think wider. Workplace safety can be achieved by implementing safe work practices, and not by adding compliance costs on businesses. Keeping safe at work is in everyone’s interest.

The argument from the Opposition that worker participation is not enough is underestimating worker participation in safe work practices and health and safety. Workplace health and safety is important. No one is denying that. We have a serious rate of injuries, including fatal injuries, at workplaces here in New Zealand. No one is denying that either. That is why this Government is working hard and is investing significantly to reduce workplace injuries. This bill is part of that work. This bill is to update, to clarify, and to simplify the law to focus on high-risk areas. It is about getting the balance right. This does not mean that low-risk businesses are not required to have any health and safety regime. Low-risk businesses are required to have worker participation. They will have their routine health and safety built into their system, and they are required to have safe work practices. They are not exempt from following health and safety legislation.

For workplace health and safety, worker engagement and participation is important, and it is important to differentiate between high-risk and low-risk businesses. The amendments to worker engagement and participation are about making the bill practical for different business types. Clause 65, which is amended by inserting a new subclause (3) to make things clear for high-risk versus low-risk small businesses, is the right thing to do. High-risk sectors and industries are specified by the Minister, and the list of high-risk industries was based on set criteria and data, looking at the rate of injury in those industries, the rate of fatality in those industries, and businesses with the potential for a catastrophic event to occur. It is right to do that. It is important that we differentiate between businesses, that we differentiate low-risk businesses versus high-risk businesses before we go out and create more compliance costs for businesses.

Any person conducting a business or undertaking with fewer than 20 workers—if that business is a low-risk - profile business—can refuse to establish a health and safety committee on the basis that they have a satisfactory system where they have worker participation practices at the workplace. It is important to have worker participation, because sometimes employers do not have hands-on experience of what is happening on the floor. Workers have more experience, and they can contribute more to health and safety practices. It also gives the opportunity to workers to understand how health and safety is important at the workplace, how it is important to look after themselves and also important to look after their colleagues.

This side of the House believes that we need to look after our businesses in the right way. We want to make sure that our businesses survive and that we are not putting any unnecessary burden on our businesses. Our target is to reduce the number of injuries, so we need to target the kind of businesses where injuries are happening. There is no point in increasing compliance for businesses where there are no injuries or a low number of injuries happening. We want to encourage competition in the economy, and we are saying that worker participation is going to be there. They have to follow health and safety, but it is all about having health and safety reps and health and safety committees. That is the difference for small businesses—

It is becoming a bidding war; thank you, Mr Chair. I wanted to come back in my response to Part 3 of the Health and Safety Reform Bill to the statements that the Minister for Workplace Relations and Safety made at the beginning of his contribution. He stated that the primary point that he wanted to make around Part 3 was that we need to create a culture change within workplaces—that we need every worker to feel engaged in workplace health and safety. That, somehow, was his rationale for why we needed to exclude a certain sector of businesses from these provisions.

Yet what it is about small businesses that means that culture change will not be achieved if we have health and safety reps in them that does not apply to larger-sized businesses? Of course, no one is really going to argue with culture change, but the Minister’s notion that that was a rationale really does not stand. In fact, if anything, it felt almost contradictory to say that in the larger workplaces we see this as a conduit for creating greater workplace health and safety, but we see it as a barrier for small businesses. I would be happy for the Minister to stand up and explain again if I missed the point the Minister was trying to make, but I personally saw it as not really a fair and reasonable point.

I do want to delve a little bit into the exemptions that sit within Part 3, because we do have an exclusion here that applies to small businesses, and, as has been pointed out by Jan Logie, that is a significant proportion of workplaces in New Zealand—

💬 Jan Logie: It is 97.

Over 90 percent. In fact, 41 percent of the new jobs that were created last year were created in businesses that will now be exempt from some of these provisions. I want to delve into some of the rationale for those exemptions and how they might apply.

But before I do, the one thing I do want to say is that in my role as small-business spokesperson for the Labour Party, one of the strong messages I consistently hear—yes, that was a plug, Chris Bishop—when talking to small businesses is: “If you’re going to regulate us, make it consistent and make it clear.”

In some cases, carve-outs can be unhelpful things when you have different rules applying, particularly when there are penalty regimes attached—when a business that might be exempt one day employs an extra part-time worker and is not exempt the next. Sometimes that can actually do more harm than good, and if the primary reason that the National Party is falling back on exemptions is to be seen as the saviour of small business, I think that is pretty weak. In fact, I actually think that as it stands there is no reason to give that exemption, because the way that this part is structured is primarily driven by what the workers see as need. And if the workers suggest that they want reps, then obviously there is a need there, and if they do that within a small business, that should be particularly compelling as a reason to prompt having a rep. The option exists, so why create a blanket carve-out where you move away from an option to actually creating a ban? That is essentially what we see instead, which seems crazy from my perspective.

Coming to Part 3, clause 65(1) states: “A worker who carries out work for a business or undertaking may notify the PCBU”—the boss—“that the worker wishes 1 or more health and safety representatives to be elected to represent workers …”. OK, that is the first way that you can initiate having an election of a health and safety rep: a worker initiates it. New clause 65(2) states: “A PCBU”—the boss—“may, on the PCBU’s own initiative, initiate the election …”. That is the second way. So, basically, what we are seeing is that if need is identified within that workplace there are two trigger points there that are available. But it says in new clause 65(3) that: “a PCBU is not required to initiate the election of 1 or more health and safety representatives, if the work of the business or undertaking—(a) is carried out by fewer than 20 workers; and (b) is not within the scope of any … high-risk sector or industry.”

Coming back to the Minister’s point, if there is a culture of health and safety within a workplace that everyone has adopted and that is functioning well, you are probably—[Bell rung]. Oh, you said my name. Thank you. I was probably shouting over you. It is probably unlikely in that case that workers would see a need to trigger the election of a health and safety rep. On the flip side, if your workplace is as small as 20 employees or fewer and you feel like you need to trigger the election of a health and safety representative, that actually probably points to there being some issues in the workplace. Why would we want to exempt workers from having that right and having that ability?

The Minister’s fall-back position here in new clause 65(3)(b) is that there will by regulation be a list of workplaces where that carve-out will not apply. I have some concerns here. The Minister talked about there being no correlation between health and safety representatives and workplace safety—

💬 Hon Michael Woodhouse: None that I could find. Feel free to table it.

—that he can find. I would be really interested if he has found any correlation between smaller workplaces being safer than larger workplaces, because this is a very arbitrary line in the sand that is being drawn.

The Minister has tried to counter that by saying: “Well, we will carve out the ones that we think are high risk.” But how do you define that? The indication that we have had is that an indicative list of high-risk industries will be based on roughly three categories—the Minister can correct me if I am incorrect here—“businesses that carry the risk of a catastrophic event causing multiple fatalities”. What is the definition of “catastrophic”? Sudden great damage is one of the definitions. Examples that you will find if you choose to look up a dictionary, which in the Committee stage I am quite in favour of, is that the definition of “catastrophic” usually uses references to natural disasters—fatalities from earthquakes, or things like failures of dams.

These are things that, actually, probably are unlikely to be—well, outside of a natural disaster—in a small workplace. Perhaps you might conclude that catastrophic events might occur in small mining operations. Perhaps if you work in pyrotechnics or explosives, they might occur. But I think it is fair to say this is a reasonably narrow definition. The use of the word “catastrophic” would be a narrowing provision in any indicative list. If the Minister wants to find another definition in the dictionary, he would be welcome to.

The second category is any industry with a fatality rate greater than 25 per 100,000 workers, although we are excluding agriculture—

💬 Hon Michael Woodhouse: They are not over 25.

—but it still has a significant rate of injury and fatality—and any industry with a serious injury rate of more than 25 per 1,000 workers. My concern with this is, first—and absolutely right, as my colleague Clare Curran points out—what is the definition of “serious injury”? If, for instance, we use the definitions used by the Department of Corrections, it is whether or not you are hospitalised for 24 hours or more. That is significant—to be hospitalised for 24 hours or more—these days. You basically would not consider having a baby “serious” under that provision, with the way that we send women packing from our hospitals.

So if that definition is what we are using, that also requires the recording of serious injury. I admit, I do not know the area well enough to know the depth of data that we have, but I would be particularly interested in what data collection there is around serious injuries in small businesses and in smaller workplaces. Do we really have a handle on some of those areas of industry? Is our data collection robust enough to really make that the provision on which we are excluding those industries?

The same arguments apply, I believe, to health and safety committees. Again, the provision there is when five or more workers in that workplace trigger that provision. If a quarter of the employees of a small business say that they need a health and safety committee, you have got a big problem on your hands. That is the kind of workplace that needs the ability to have those committees. Why would we ban that, as this bill does? It is wrong. The exclusion should be removed.

Progress reported.

Report adopted.

The House adjourned at 9.56 p.m.